The Preliminary Objection 3. 4. The Respondent opposed the Petition vide a Notice of Preliminary Objection led on the 12th day of August, 2021 on grounds, inter alia, that: i. The Honourable Court lacks jurisdiction to hear and determine issues raised in the Petition as the same does not raise justiable constitutional matters. ii. The matters raised by the Petitioners fall under the jurisdiction of the Data Protection Commissioner established under the Data Protection Act, 2019 and this Honourable Court ought to discourage invocation of the constitutional process where there exists a parallel or alternative statutory remedy. iii. The allegations of taking and using photographs without the consent of the Petitioners are under the province of investigation by the oce of the data commissioner under the Data Protection Act, 2019. iv. The Data Protection Act provides for an avenue for the Petitioners to seek redress. v. Even if the allegations raised in the Petition merit litigation, the claim is founded on tort and should not be entertained as a constitutional petition. vi. The Petition does not meet the required standards for Petitions alleging the violation of the human rights bill. The Respondent thus urged the Honourable Court to dismiss the Petition. Respondent’s Submissions 5. The Respondent relied on the locas classicus case of Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) E.A. 696 page 700 which guides a Court with what constitutes a preliminary objection. It was observed as follows: “ ...so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration. ...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.” 6. It was the Respondent’s submission that the Honourable Court lacked the jurisdiction to entertain the Petition as the available alternative dispute resolution mechanisms were yet to be exhausted by the Petitioners prior to ling the petition. The argument is on the basis that where there is a clear procedure for redress of any particular grievance by the Constitution or an Act of Parliament, that procedure kenyalaw.org/caselaw/cases/view/237212/ 2